A leading California Democratic state senator and other state lawmakers have retracted recent criticism of the state toxics department's landmark draft green chemistry regulations, potentially clearing a path for the department to finally adopt the long-delayed program's rules.
State Sen. Michael Rubio (D), the new chair of the Senate's top environmental committee, last month retracted his previous request to the governor that the rules be delayed due to concerns that economic impacts have not been analyzed by the department.
Rubio and other lawmakers, in an abrupt shift, now say the department's explanation of how it will address economic impacts is satisfactory, which may allow an easier path forward for the department to finalize and adopt the program, sources say. The department's director recently met with Rubio to discuss the program and attempt to appease his concerns, sources say.
The draft regulations have been delayed multiple times over the past two years due to various objections by key stakeholders and the governor, despite state law requiring the program to be in place by January 2011. And many observers expect industry groups will sue the department once the regulations are finalized, which could lead to further implementation delays.
At issue are Department of Toxic Substances Control (DTSC) draft green chemistry regulations, which are being closely monitored by numerous stakeholders because the program is viewed as a potential national model for phasing out potentially problematic chemicals in everyday consumer products. DTSC's green chemistry regulatory program is mandated by the 2008 California law AB 1879, which requires the department to designate "chemicals of concern" in various consumer products and prioritize which products or chemicals may be regulated or even removed from commerce.
AB 1879 grants DTSC the authority to require manufacturers to study whether replacing chemicals of concern with alternatives is feasible. This is known as the "alternatives assessment" process, considered a key part of the program.
DTSC has stated publicly that the agency initially only plans to focus on regulating a handful of household personal care products. Activists and the department have bemoaned the fact that the state legislature has been unable to adopt a green chemistry program fee to help fund the program for the long-term.
In an Oct. 1 letter to Gov. Jerry Brown (D), Rubio and 15 other lawmakers said they had significant concerns with the lack of an economic impact analysis performed by DTSC on the draft plan. The letter noted that DTSC's "economic and fiscal impact statement" in the draft rules fails to answer several questions, such as the number of businesses in the state to be impacted and total statewide costs businesses will incur to comply. "These answers are unacceptable for regulations of this magnitude," the letter stated.
But in a Nov. 9 letter to DTSC, Rubio and other lawmakers reversed their position and now say they are satisfied with DTSC's intent to eventually analyze the economic impact of the rules once "priority products" are chosen for regulation. "Due to DTSC's commitment, we are no longer requesting a delay" in the rules, the letter says.
The latest letter also cites an Oct. 5 DTSC letter that responds to the lawmakers' concerns. "We appreciate that, in [DTSC's] response, you recognize the important balance between protecting consumers and preserving California's economic future," the Nov. 9 Rubio letter says. "It is crucial that we continue to maintain this critical balance as the process continues."
In an Oct. 5 response, DTSC Director Debbie Raphael says the department intends to conduct a rigorous and comprehensive economic analysis when priority products are selected under the regulations. "This analysis will include information pertaining to: creation/elimination of jobs and businesses; competitive advantages/disadvantages for California businesses; impacts on investments in California; incentives for innovation; and the benefits of the regulations."
But environmentalists remain concerned that industry groups are "poised to litigate the regulations and to resist giving the department adequate funding to make the program viable," an environmentalist says.
The Green Chemistry Alliance, an industry coalition, never commented on the Rubio letters, an industry source says. But "individual organizations expressed strong feelings of their own" regarding economic impacts, the source says.